Boxall and Secretary, Department of Social Services (Social services second review)
[2019] AATA 764
•26 April 2019
Boxall and Secretary, Department of Social Services (Social services second review) [2019] AATA 764 (26 April 2019)
Division:GENERAL DIVISION
File Number: 2018/3104
Re:Roger Boxall
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member Brigadier A G Warner
Date:26 April 2019
Place:Perth
The Tribunal affirms the decision under review.
.................................[sgd].......................................
Member Brigadier A G Warner
Catchwords
SOCIAL SECURITY – age pension – whether residence requirements satisfied – relevant factors – nature of accommodation – nature and extent of family relationships – nature and extent of person’s employment, business or financial ties – nature and extent of person’s assets – frequency and duration of person’s travel – any other relevant matter – decision affirmed
Legislation
Social Security Act 1991 (Cth) – ss 7(2), 7(3), 1220, 1220(1)
Social Security (Administration) Act 1999 (Cth) – ss 80, 80(1)
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674
Re Killick and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059
Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241
Re MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 133 ALD 448Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931
Secondary Materials
Guide to Social Security Law, Department of Social Services, version 1.253 – paras 7.1.4, 3.1.1.10
REASONS FOR DECISION
Member Brigadier A G Warner
26 April 2019
INTRODUCTION
The Applicant seeks the review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1) on 25 May 2018, which affirmed a decision made by the Department of Human Services (the Department) on 4 April 2018 to suspend the Applicant’s age pension on the basis that he left Australia within two years of his most recent return to Australia and therefore did not satisfy s 1220 of the Social Security Act 1991 (Cth) (the Act).
The Applicant attended and gave evidence at the hearing in Perth on 17 January 2019.
Ms D Jones-Bolla of Sparke Helmore Lawyers represented the Respondent.
BACKGROUND
The Applicant was born in Australia in 1951 and reached age pension age on
15 August 2016 (T9, 100).
The Applicant was present in Australia for a total of 251 days during the period 17 October 2005 to 1 December 2017 (T31, 178 and T39, 228-229).
The Applicant returned to Australia on 2 December 2017 (T39, 228), and the following day on 3 December 2017 lodged a claim for age pension with the Department (T9, 100-107).
The Applicant’s claim for age pension was assessed on the basis that he was a ‘returned resident’ (T40, 253) which was granted on 11 January 2018 with effect from 3 December 2017 (T12, 112).
On 3 April 2018, the Applicant advised the Department that he was departing Australia on 4 April 2018 and returning on 19 May 2018 (T40, 270). He subsequently departed Australia on 4 April 2018 (T39, 228).
On 4 April 2018, the Department suspended the Applicant’s age pension on the basis that he left Australia within two years of his most recent return to Australia (T29, 173).
The Applicant requested a review of the decision dated 4 April 2018 (T40, 273) and on 19 April 2018, an Authorised Review Officer (the ARO) affirmed the decision to suspend the Applicant’s age pension from 4 April 2018 (T31, 176-189). That same date, the Applicant lodged an application for review of the ARO decision with the AAT1 (T32, 191-192).
On 27 April 2018, the Department restarted Mr Boxall’s age pension from 4 April 2018 on the basis of the international social security agreement between Australia and Spain (T33, 193 and R1, [2.3]).
On 25 May 2018, the AAT1 decided that (T2, 10 at [56]):
The frequency and duration of Mr Boxall’s absences from Australia during the period from 17 October 2005 to 1 December 2017 were of such significance that they outweighed his ties to Australia… Mr Boxall ceased to be an Australian resident during that period.
In so deciding, the AAT1 affirmed the ARO decision under review (T2, 11).
ISSUE
The Tribunal must decide whether age pension was payable to the Applicant from
4 April 2018 when he departed Australia.
The Respondent contends that this requires the determination of whether the Applicant satisfied s 1220 of the Act, and this requires consideration of the following issues:
(a)whether the Applicant was an Australian resident prior to 17 October 2005;
(b)whether the Applicant ceased to be an Australian resident during the period 17 October 2005 to 1 December 2017;
(c)whether the Applicant again become an Australian resident during the period 2 December 2017 to 3 April 2018;
(d)whether the Applicant was granted age pension within two years of again becoming an Australian Resident; and
(e)whether the Applicant left Australia after the age pension was granted but prior to the end of two years.
LEGISLATION
The relevant legislation is contained in the Act and the Social Security (Administration) Act 1990 (Cth) (the Administration Act).
The Guide to Social Security Law (the Guide) provides policy advice to assist decision-making. Whilst the Tribunal is not bound to apply the policy guidelines, it will usually do so unless there are cogent reasons in a particular case for not doing so (see Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The basic provisions for portability of age pension are found under sub-division A of Division 2 of Part 4.2 of the Act. However, the Act provides an exception to portability where the claim is based on short residence.
Relevantly, s 1220(1) of the Act provides that if:
(a) a person is an Australian resident; and
(b) the person ceases to be an Australian resident; and
(c) the person again becomes an Australian resident; and
(d)within the period of 2 years after the person again becomes an Australian resident, the person is granted, or is transferred to:
(i) an age pension; or
(ii) a disability support pension; or
(iii) a bereavement allowance; and
(e) after the pension or allowance is granted, or the person is transferred to the pension or allowance, as the case may be, but before the end of that period of 2 years, the person leaves Australia; and
(f) financial assistance is not payable in respect of the person’s absence from Australia under the Medical Treatment Overseas Program administered by the Minister who administers the National Health Act 1953;
pension or allowance based on that claim is not payable to the person during any period during which the person is outside Australia.
Section 7(2)(a) of the Act provides that an Australian resident is a person who, among other things, resides in Australia. Section 7(3) of the Act lists the following factors which are to be taken into account in determining whether a person is residing in Australia:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person's employment, business or financial ties with Australia; and
(d) the nature and extent of the person's assets located in Australia; and
(e) the frequency and duration of the person's travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
The concept of residency was discussed in Hafza v Director-General of Social Security (1985) 6 FCR 444; (1985) 60 ALR 674, where at [680] Wilcox J referred to residence as comprising essentially two elements: physical presence and the intention to treat a place as home, at least for the time being although not necessarily forever (Exhibit R1 at [4.8]).
Section 80(1) of the Administration Act provides that if the Secretary is satisfied that a social security payment is being, or has been, paid to a person who is not, or was not, qualified for the payment or to whom the payment is not, or was not, payable, the Secretary is to determine that the payment is to be cancelled or suspended.
The Guide at 7.1.4 states as follows:
A person arriving in or returning to Australia (1.1.A.320) [sic] must satisfy the Act's definition of Australian resident in order to lodge a proper claim for a pension. A former resident who returns to Australia and is granted a pension (Age, DSP, WP, WidB, BVA), or who transferred under SS(Admin)Act [sic] section 12 to Age CANNOT take that pension outside Australia if they leave again within 24 months after having again become an Australian resident.
[Original emphasis]
EVIDENCE
The evidence before the Tribunal comprised:
·The ‘T Documents’ (T1-T40, 1-278);
·Applicant’s Responsive Submission filed 27 September 2018 (Exhibit A1);
·Applicant’s Preamble filed 30 July 2018 (Exhibit A2);
·Applicant’s email dated 28 July 2018 (Exhibit A3);
·Letter from the Applicant’s Property Manager dated 10 July 2018 (Exhibit A4);
·Travel data filed 28 July 2018 (Exhibit A5);
·Letter from the Applicant’s Rheumatologist, dated 6 July 2018 (Exhibit A6);
·Letter from the Applicant’s half-brother and his wife dated 10 July 2018 (Exhibit A7);
·Letter from the Applicant’s daughter dated 7 July 2018 (Exhibit A8);
·Maintenance records filed 28 July 2018 (Exhibit A9);
·Letter from the Applicant’s Superannuation provider dated 11 June 2018 (Exhibit A10);
·Letter from the Applicant’s Travel Sales Consultant filed 28 July 2018 (Exhibit A11);
·Document ‘Longest times in one place’ filed 28 July 2018 (Exhibit A12);
·Letter from the Applicant’s son filed 28 July 2018 (Exhibit A13);
·The Applicant’s Spanish bank account statement filed 28 July 2018 (Exhibit A14);
·The Applicant’s checking account statement filed 28 July 2018 (Exhibit A15);
·Letter from the Applicant’s wife dated 11 July 2018 (Exhibit A16);
·Release of Security Authority – the Applicant’s wife dated 2 February 2018 (Exhibit A17);
·Letter from the Applicant’s parents’ in-law (handwritten, typed and translated versions) dated 10 July 2018 (Exhibit A18);
·Applicant’s AAT Appeal 2 Submission filed 28 July 2018 (Exhibit A19);
·Document – ‘Cruisers Exposed’ (Exhibit A20);
·Applicant’s Opening Address and Submissions titled ‘Material factors supporting the Appeal Application’ filed 16 January 2019 (Exhibit A21);
·Respondent’s Statement of Issues, Facts and Contentions (SoFIC) dated 28 August 2018 (Exhibit R1); and
·The oral evidence of the Applicant.
CONSIDERATION
It is not in dispute, and the Tribunal finds, that:
·the Applicant was born in Australia and is an Australian citizen (Exhibit R1, p4.6);
·the Applicant was an Australian resident prior to 17 October 2005 (Exhibit R1, p4.15);
·
the Applicant again became an Australian resident during the period
2 December 2017 to 3 April 2018 (Exhibit R1, 4.68); and
·
the Applicant departed Australia on 4 April 2018 and returned to Australia on
19 May 2018 (T39, 228 and T40, 270).
The Respondent’s case is that age pension was not payable to the Applicant (and therefore suspended on 4 December 2017) because he left Australia within two years of his most recent return. The Respondent contends that the Applicant was an Australian resident prior to 17 October 2017, then ceased to be an Australian resident during the period 17 October 2005 to 1 December 2017, then again became an Australian resident on 2 December 2017, and therefore the operation of s 1220 of the Act is attracted (Exhibit R1, p2.4).
The Tribunal must have regard to the factors prescribed by s 7(3) of the Act when it is determining whether the Applicant can be considered to have been an Australian resident prior to and at the time which he lodged his claim for age pension on
3 December 2017.
The frequency and duration of the person’s travel outside of Australia
The Guide at 3.1.1.10(1) provides guidance in relation to this factor:
A person does not need to be continuously present in a country in order to be residing there. A person holidaying or working temporarily overseas does not necessarily cease to reside in Australia while they are away.
It is necessary to find the reason for being overseas and to look closely at the pattern and duration of time spent outside Australia in order to ascertain whether a person continues to reside in Australia. For Australian residence to be maintained during an absence, a person must demonstrate continued physical ties to Australia, the absence must be for a short duration, there must be a purpose for the absence and there must be a proposed end date for the absence.
Taken in isolation, a 3 year continuous absence would be regarded as an upper limit to still being considered residing in Australia, unless there are special circumstances delaying a return. When looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable.
The purpose of an overseas absence may indicate whether a person continues to reside in Australia. The reason should be consistent with the intended length of the absence. For example, a person working on an 18 month overseas contract posting would still be considered to reside in Australia as long as they have demonstrated ongoing physical ties to Australia and a commitment to return to Australia at the end of the posting.
It is not uncommon for a person to remain overseas for a lengthy period of time but state that they intend to return to Australia to live at some uncertain, future date. In general, when a person states that they are leaving Australia temporarily with the intention of returning to Australia, the person's 'intent' becomes less of a factor as the length of the absence increases. A person's physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved.
A person who has spent the majority of their time overseas in the last few years and who returns to Australia to claim a benefit will not necessarily be eligible from the day they return to Australia. The person must demonstrate that their physical ties with Australia have been re-established, or are in the process of being established and that they intend to reside again in Australia.
The Applicant’s evidence is that during the period 17 October 2005 to 1 December 2017 (the relevant period), he and his wife sailed over 40,000 nautical miles and visited more than 40 countries. The Applicant worked in the USA during the period November 2005 to May 2006, and then pursued a lifelong dream to sail the oceans, an adventure that he expected to take 10 years (Exhibit A21, 1).
The Applicant’s movement history records demonstrate that during the relevant period he spent 4178 days outside Australia and was present in Australia for 251 days. The Applicant was therefore present in Australia for 251 of the 4429 days, only 5.67% of the relevant period (T39, 228-229).
The Applicant returned to Australia 12 times during the relevant period. The longest stay was approximately 48 days between 31 December 2010 and 17 February 2011 (T2, 7 at [36]). Between 14 November 2014 and 1 September 2016 the Applicant was outside Australia for 657 days (T39, 228-229).
The Applicant contends that during the period he was on his sailing vessel, he was residing in Australia because he was sailing in an Australian registered vessel. He told the Tribunal:
The vessel flies the Australian flag. It is subject to all the domestic laws of Australia. Any person on board a flagged vessel is subject to the domestic laws of that country, which I have been whilst I’ve been away (Transcript, 14 at [43-45]).
The AAT1 decision records the Applicant’s reference to documents which he had sourced in support of his contention, comprising of (T2, 8 at [40]):
(f)A House of Representatives Committee document: Mr Boxall referred to Chapter 3 on Jurisdiction at Sea which he said states that at all times a ship is subject to the domestic laws of the country in which it is registered; and
(g)The United Nations Convention on the Law of the Sea (UNCLOS), of which Australia is a party: Mr Boxall said article 94 of the Convention stipulates that every state shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag.
The present review by the Tribunal is de novo. Like the AAT1 the Tribunal accepts that although the documents referenced above refer to jurisdiction over a ship, it does not accept that it follows that a person sailing on board a ship is a resident of the country where the ship is registered.
The Respondent provided submissions relative to the Applicant’s contention that he was residing in Australia because he was on-board an Australian registered vessel (Exhibit R1, 4.24-4.31). The Respondent contends that (Exhibit R1, 4.24):
There is no lawful basis upon which the Applicant can assert that by living in an Australian registered sailing vessel in the territory of another country he is nevertheless ‘residing in Australia’.
In the absence of contrary authority, the Tribunal agrees.
The Guide relevantly states at 3.1.1.10 that the most weight should be given to time spent in Australia, and states that ‘when looking at the pattern and duration of time spent outside Australia, if a person regularly spends more than 6 months a year outside Australia, then their residence in Australia is questionable’ (T4, 62).
The Tribunal considers that the frequency and duration of the Applicant’s absences from Australia during the relevant period, that being a twelve year period 17 October 2005 to 1 December 2017, do not support the Applicant’s being a resident of Australia during that period.
The nature and accommodation used by the person in Australia
The Guide at 3.1.1.10 provides guidance in relation to this factor.
The Applicant contends that his permanent home is the property at [omitted], Maylands (the Maylands property). His wife is the sole owner of the property and her parents also reside there. His accommodation at sea is an Australian registered sailing vessel (the SY Ednbal) (T23, 146). The Applicant confirmed in the AAT1 that for the vast majority of the time when he was outside Australia he was travelling on the SY Ednbal and at times anchored for long periods in other countries including Panama, Colombia, Egypt, Turkey, the Galapagos Islands and French Polynesia (T2, 6 at [29]). He also told the AAT1 that when on land he and his wife camped out or stayed in an apartment or hotel (T2, 6 [28]).
In its consideration of the factor above, the Tribunal rejected the Applicant’s contention that he was residing in Australia whilst living in an Australian registered sailing vessel in foreign waters. The evidence is that during the relevant period, the Applicant owned or had an interest in permanent accommodation available for his use in both Australia at the Maylands property and overseas on-board the SY Ednbal, however spent considerably more time occupying the sailing vessel. This suggests that the accommodation on SY Ednbal was of a more permanent nature. Relevantly, the Guide indicates that ‘if the accommodation circumstances are the same in both countries then more weight should be given to the nature of the accommodation where they spend the majority of their time’ (T4, 63).
The Tribunal considers that this factor does not support the Applicant being a resident of Australia during the relevant period.
The nature and extent of the family relationships the person has in Australia
The Guide at 3.1.1.10(3) provides guidance when considering this factor. Although the term ‘family member’ is not defined in s 7(3) of the Act, the Guide states that it will generally include the person’s spouse, children, parents, brother, sister etc (T4, 64). The Applicant contends that his immediate family are in Australia (T23, 147). He states that his ‘three surviving siblings, three children and four grandchildren’ live in Australia (T23, 147). The Applicant’s spouse travels with him when he is overseas, and her parents reside in the Maylands property. In Exhibit A21 at [2] and before the Tribunal, the Applicant summarised the extent of his family in Australia as: ‘In Australia: 3 siblings, 3 children, 4 grandchildren (for approximately half the relevant period so counts as 2). Wife travelled with me. Percentage Australian is 8/9 = 89%.’
The Tribunal accepts the Applicant’s evidence regarding the strong relationships with family members in Australia, and that when absent from Australia, he maintained contact by email, WhatsApp and telephone.
The Respondent acknowledges that the Applicant’s children and siblings have visited him while overseas and notes the Applicant’s calculation of 338 days together with those family members (T23, 147-148). The Respondent cannot verify the accuracy of such a calculation, however submits that this accounts for less than 8% of time together during the relevant period, and ‘that receiving family visits when overseas is insufficient to establish Australian residency’ (Exhibit R1, 4.43).
The Guide at 3.1.1.10(3) provides that ‘just having a family member in a country does not constitute strong evidence that the person is residing in that country’ and that:
Strong weight should be given to where the person's immediate family is residing, or where the person is providing a significant level of care for a member of their family or where the person spends the most amount of time with their family (T4, 64).
The Tribunal considers it relevant that members of the Applicant’s family lived in Australia during the relevant period, however assigns significant weight to the fact that the Applicant’s spouse accompanied him whenever he was overseas during the entire relevant period. Having careful regard to the evidence, the Tribunal concludes that this factor does not support the Applicant being a resident of Australia during the relevant period.
The nature and extent of the person’s employment, business or financial ties with Australia
The Applicant has two bank accounts and a State Government Superannuation account in Australia, one bank account in the United States of America, and one bank account in Spain (T36, 211) during the relevant period. In relation to the overseas accounts, the Applicant told the Tribunal:
The reality is that the bank accounts used in those countries are used for a particular purpose and very rarely. The bank account in the US, of course we were there for a period of six months, so an account was opened there. The boat, the vessel was bought in the US and it is US made, so very important that I am able to purchase parts for the vessel, and of course with an account in the US that makes that possible and somewhat simpler (Transcript, 11 at [5-11]).
The Applicant has owned two rental properties in Bicton and Fremantle since 2008 which are managed by Airey Real Estate, and a property in Northbridge (T9, 105). The Applicant also jointly owns a holiday apartment in Spain purchased in 2012 with the intention of renting the property out as an Airbnb and for the occasional holiday should finances permit (T2, 7 at [33]).
The Guide at 3.1.1.10(4) states that ‘having a bank account in Australia will carry no weight as it is relatively easy to open an account without the person being physically in Australia.’ The Respondent contends that no weight should be given to the fact that the Applicant has a bank account in Australia, and in relation to the Applicant’s Australian Superannuation account and the rental properties in Australia, weight should be given to the fact that the Applicant has overseas bank accounts and a property in Spain (Exhibit R1, 4.49-4.50).
The Tribunal notes the concept of residence explained by Williams J in Koitaki Para Rubber Estates Limited v The Federal Commissioner of Taxation (1941) 64 CLR 241, 249:
The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situate, but he may also reside where he habitually lives even if this is in hotels or on a yacht or some other abode.
Having careful regard to the circumstances of this matter, the Tribunal concludes that this factor is not supportive of a finding that the Applicant was a resident of Australia during the relevant period.
The nature and extent of the person’s assets located in Australia
The Guide relevantly states that ‘owning assets in Australia may also assist in the determination that a person is residing in Australia. However, by itself this would not be a conclusive determinant’ (T4, 65).
The Applicant has an interest in the Maylands property owned by his spouse in which her parents reside and in which the Applicant resides when he is in Australia. The Applicant has owned two rental properties in Bicton and Fremantle since 2008, which are managed by Airey real estate, and a property in Northbridge (T9, 105). The Applicant also jointly owns a holiday apartment in Spain (see paragraph 47).
The AAT1 decision dated 25 May 2018 records:
The sailing vessel is currently moored at a marina in New Caledonia and has been there since December 2017. Mr Boxall said the sailing vessel was left there because it would cost $10,000 to return it to Australia (T2, 7 at [35]).
The Tribunal notes the Respondent’s submission ‘that the properties in Australia are a relevant consideration, but due weight should be given to the fact that the Applicant has a property in Spain’ (Exhibit R1, 4.55). However, the Tribunal considers the nature and extent of the Applicant’s assets in Australia to be of greater significance and relevance than the property in Spain. Accordingly, the Tribunal finds that this factor supports the Applicant being a resident of Australia during the relevant period, but notes the policy guidance that this is not a conclusive determinant.
Any other matters relevant to determining whether the person intends to remain permanently in Australia
The Guide at 3.1.1.10 provides guidance in relation to this factor.
The Tribunal does not question the Applicant’s contentions that he never abandoned Australia as his home; that he regards Australia as home; that he never took up permanent residency in another country; and that ‘the book Cruisers Exposed [Exhibit A20] and the huge body of evidence shows the Applicant would RETURN to Australia’ (Exhibit A21, 4) [original emphasis]. However, it does not follow from the Applicant’s claim that he was not residing permanently in another country at any time, and that he continued to reside in Australia during the relevant period within the meaning of s 7(2) of the Act. The Applicant’s intentions must be considered together with all the evidence.
Relevantly, Deputy President Hotop noted in Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 931 [at 19] that:
Although the Tribunal accepts that the applicant has at all material times regarded, and continues to regard, Australia as "home"- having been born and raised in Australia and having maintained the continuity of association with Australia indicated by his abovementioned evidence regarding the factors specified in s 7(3) of the Act – and that he intends ultimately to reside permanently in Australia, it does not follow there from that, in the meantime, he must be taken to be continuing to "reside in Australia", within the meaning of s 7(2)(a) of the Act, throughout long periods of absence from Australia.
The case of ReKillick and Secretary, Dept of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 1059 relevantly states:
[22] However, a mere statement of intention is not sufficient. It needs to be assessed in light of all the evidence about the applicant’s circumstances in order to determine what weight it should be given.
…
[66] … merely having in mind to return to Australia at some point is not sufficient.
The Guide provides at 3.1.1.10(6) that:
In general, when a person states that they are leaving Australia temporarily with the intention of returning, the person’s intent becomes less of a factor as the length of absence increases. A person’s physical ties with a country will normally take precedence over their intentions when lengthy periods of time are involved (T4, 67).
The Respondent submits that during the relevant period the Applicant was overseas for approximately 95% of his time and his intention is not a relevant factor for consideration.
The Applicant submits that in the refused extension of time application decision of 2018/7510, the Tribunal gave proper interpretation to s 7(3) of the Act when the Senior Member stated that the Applicant may have an arguable case with respect to whether he was an Australian resident when he was absent from Australia (Exhibit A21, 4 at [8]). However, it would not have been necessary or appropriate for the Senior Member to undertake a merits review of Mr Boxall’s substantial application in that interlocutory hearing, and the Senior Member made it clear that she had not done so. Accordingly, this Tribunal places no weight on the Senior Member’s statement in the decision dated 28 March 2018 (T25,165 at [49]).
The Respondent acknowledges the Applicant’s reliance on MQJJ and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 924 (MQJJ), and submits that MQJJ is relevant to the extent that the Tribunal must consider the s 7(3) factors. However, the Respondent submits that the circumstances of the particular applicant must be weighed against the s 7(3) factors in deciding whether a person is an Australian resident. The Respondent submits that the facts of MQJJ are significantly different from the facts in this matter and MQJJ is distinguishable (Exhibit R1, 4.60). The Tribunal agrees.
The Respondent acknowledges the private rulings made by the Australian Taxation Office (ATO) on 18 October 2012 and 30 November 2016 (the private rulings) which found that the Applicant was a resident of Australia for taxation purposes. The Tribunal has included these findings in its considerations, but does not find them determinative in the present proceedings. The private rulings were made under the Income Tax Assessment Act 1997 (Cth) and the Income Tax Assessment Act 1936 (Cth) (T5, 80-82 and T6, 83-85) and state ‘…you are a resident of Australia for tax purposes, according to section 6-5 of the ITAA 1997’ (T5, 82, 85). The Tribunal assigns no weight to the private rulings of the ATO under different Acts and for the purposes of taxation, rather than under social security legislation.
Having careful regard to all the evidence and the Applicant’s circumstances, the Tribunal does not consider that any of the ‘other matters’ before it under this factor weigh in favour of a conclusion that the Applicant was a resident of Australia during the relevant period.
CONCLUSION
The Respondent submits that the Guide is consistent with s 7(3) of the Act and should be considered in determining whether a person resides in Australia. The Tribunal agrees. The Guide at 3.1.1.10 relevantly states:
When making a determination about whether a person is 'residing' – in other words 'living' – in Australia, the key point is to establish that Australia is the person's settled or usual place of abode – i.e. that the person makes Australia his or her home. In general, it is not possible for a person to be residing in more than one country at the same time. In most cases, the balance of a person's ties will weigh more heavily in favour of one country than another.
The decision as to whether a person is residing in Australia must be based on the balance of all the available evidence. No single factor should be taken to be conclusive on its own and some factors will usually provide a greater indication than others, however in the majority of cases the most weight should be given to the time spent in Australia. In general, it is also expected that a person who resides in Australia will be able to demonstrate strong ties to Australia under a number of different criteria listed in SSAct section 7(3).
The Tribunal accepts the Applicant’s commitment to Australia, that he has family living in Australia and that he has financial ties and assets in Australia. However, these considerations must be balanced with the time the Applicant actually spent in Australia, the fact that his spouse travelled with him during the relevant period, and his assets and financial ties outside Australia.
While no one factor in s 7(3) of the Act can be determinative of this matter, on the evidence before it the Tribunal is unable to point to any factor or factors in s 7(3) which strongly support the Applicant being a resident of Australia during the relevant period. The Tribunal finds that even if there had been such a factor or factors, after taking all factors into consideration, the frequency and duration of the Applicant’s absences from Australia during the relevant period 17 October 2005 to 1 December 2017 were of such significance that they would overcome any such factor.
The Tribunal finds that the Applicant ceased to reside in Australia, within the meaning of s 7(2) of the Act, during the relevant period. Accordingly, the Tribunal finds that the Applicant ceased to be an Australian resident in that period.
The Tribunal has found above that the Applicant is an Australian citizen, that he was an Australian resident prior to 17 October 2005, that he became an Australian resident during the period 2 December 2017 to 3 April 2018, that he departed Australia on 4 April 2018 (which is prior to the end of the two year period from the date he was granted age pension being 11 January 2020), and that he returned to Australia on 19 May 2018.
It follows from the above, that pursuant to s 1220 of the Act, age pension was not payable to the Applicant during the period 4 April to 19 May 2018, and the application of s 80 of the Administration Act means that the decision to suspend his payments during that period was correct.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member Brigadier A G Warner
........................................................................
Associate
Dated:
Date(s) of hearing: 17 April 2019 Applicant: In person Representative for the Respondent:
Solicitors for the Respondent:Ms D Jones-Bolla
Sparke Helmore Lawyers
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